Presidential candidate Newt Gingrich explains why he feels the president can arrest judges with whom he disagrees. [Source: CBS News / Talking Points Memo]Republican presidential candidate Newt Gingrich (R-GA) tells a CBS audience that if he becomes president, he would send federal law enforcement officials to arrest judges who make rulings he finds unacceptable. Interviewed by CBS’s Bob Schieffer, he says the president should send Capitol Police officers or US Marshals to arrest “activist” judges who make controversial rulings, and compel them to appear before Congress to justify their decisions. Schieffer asks: “Let me just ask you this and we’ll talk about enforcing it, because one of the things you say is that if you don’t like what a court has done, the Congress should subpoena the judge and bring him before Congress and hold a congressional hearing. Some people say that’s unconstitutional. But I’ll let that go for a minute. I just want to ask you from a practical standpoint, how would you enforce that? Would you send the Capitol Police down to arrest him?” Gingrich responds he would if he “had to,” and continues, “Or you instruct the Justice Department to send the US Marshal.” A judge who issues what Gingrich calls a “radical” ruling would be forced to explain his ruling before Congress, Gingrich says: “I would then encourage impeachment, but before you move to impeach him you’d like to know why he said it.” If the judge refuses to appear under his own power, federal law enforcement officials are empowered to bring them in to testify involuntarily, he says: “I mean, you’re raising the core question—are judges above the rest of the constitution or are judges one of the three co-equal branches?… You have an increasingly arrogant judiciary. The question is: Is there anything we the American people can do? The standard answer has been eventually we’ll appoint good judges. I think that’s inadequate. The Constitution promises a balance of the judicial branch, the executive branch, and the legislative branch. The Federalist Papers say specifically the weakest of the three branches is the judiciary.” Schieffer says: “You know, the old saying in legal circles is that the Supreme Court is not last because it’s right. It’s right because it’s last. There comes a point where you have to accept things as the law of the land. How does the president decide what is a good law—and I’m going to obey the Supreme Court—or what’s a bad law and I’m just going to ignore it.” Gingrich replies: “I think it depends on the severity of the case. I’m not suggesting that the Congress and the president review every decision. I’m suggesting that when there are decisions… in which they are literally risking putting civil liberty rules in battlefields. I mean it is utterly irrational for the Supreme Court to take on its shoulders the defense to the United States. It is a violation of the Constitution.” Reporter Sam Stein notes that the day before, Gingrich held a half-hour telephone call with donors and supporters in which he pledged that if elected president, he would abolish courts and eliminate “activist judges” he considers “outside the mainstream or infringing too deeply on the commander in chief’s authority.” Many judicial experts consider Gingrich’s stance to be flatly unconstitutional. Former Attorney General Michael Mukasey, who served in the recent Bush administration, has called Gingrich’s ideas about the judiciary “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall, and [likely to] reduce the entire judicial system to a spectacle.” Bert Brandenburg of the nonpartisan Justice at Stake organization says: “Overall, he’s racing towards a cliff. It may be expedient to appeal to specific voters in primaries or caucuses, but it’s a constitutional disaster. Americans want courts that can uphold their rights and not be accountable to politicians. When you get to the point where you’re talking about impeaching judges over decisions or abolishing courts or calling them before Congress, it’s getting very far away from the American political mainstream.” Two of Gingrich’s Republican presidential challengers, Mitt Romney (R-MA) and Ron Paul (R-TX), publicly disagree with Gingrich’s position, with Paul calling the idea of compelling judges to appear before Congress “a real affront to the separation of the powers.” Michael McConnell, director of the Constitutional Law Center at Stanford University and a former federal appeals judge appointed by President Bush, says conservatives “should not be cheering” and “are misled” if they believe Gingrich’s ideas are in their best interests, especially considering many conservatives are relying on the Supreme Court to find President Obama’s health care legislation unconstitutional. He says: “You would think that this would be a time when they would be defending the independence of the judiciary, not attacking it. You can’t have it both ways. It can’t be that when conservative Republicans object to the courts, they have the right to replace judges, and when liberal Democrats disapprove of the courts, they don’t. And the Constitution is pretty clear that neither side can eliminate judges because they disagree with their decisions.” [Washington Post, 12/18/2011; Think Progress, 12/18/2011; Huffington Post, 12/18/2011; Washington Post, 12/19/2011]

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